S.D.C. Cementation (Nigeria) Ltd. & Anor. V. Nagel & Company Ltd. & Anor. (2003)

LawGlobal-Hub Lead Judgment Report

IKECHI FRANCIS OGBUAGU, J.C.A. 

This is an appeal against the decision/ruling of the Adamawa State High Court holden at Yola presided over by T. Oluoti. J. on 7th September, 1995, dismissing the appellants’ application seeking for an order of that court, dismissing the plaintiffs/respondents’ claim in Suit No. ADSY/23/94 on all or any of the grounds stated on the motion paper.

The grounds are as follows:

“(a) that the subject of this case as disclosed in the statement of claim of the plaintiffs dated 18thMay, 1995 is ex-facie illegal and/or contrary to public policy and therefore void and/or unenforceable.

(b) that the fact(s) in the statement of claim of plaintiffs dated 18th May, 1995 are tainted with illegality and therefore void and/or unenforceable.

(c) that the action subject of the above suit (sic) is ex-facie contrary to public policy and/or morals and therefore void and/or unenforceable.

(d) that the purported agreement between the plaintiffs/respondents and the defendants/applicants in the above suit is founded on or springs from an illegal transaction and/or transaction contrary to public policy/morals and therefore illegal, void and/or unenforceable.

The defendants/applicants in the said application, gave notice that at the hearing of the motion, they shall rely on the pleadings and particularly the statement of claim of the plaintiffs/respondents dated 18th May, 1994 as well as the evidence-in-chief of the 2nd plaintiff on 12th April, 1996.

The respondents as plaintiffs in their said suit, claimed various sums of money from the defendants- i.e. the appellants who denied liability. Pleadings were ordered, filed and exchanged. On 12th April, 1995, the P.W.1 – Alhaji Ahmed Njondi and P W. 2 (i.e. the 2nd plaintiff/respondent) – Alhaji Njidda Ahmed Gella, testified and were cross-examined. Exhs. 1 to 4 respectively, were tendered and admitted in evidence.

It was after the evidence of the P.W.2, that the appellants filed their said application for the dismissal of the said suit. The trial court heard arguments on 11th July, 1995, and on 7th September, 1995, dismissed the application and deferred the reasons for the dismissal to a later date. It adjourned further hearing to 18th and 19th October, 1995 as was agreed to by both learned counsel for the parties. On 6th March, 1996, the learned trial Judge gave his reasons for dismissing the said application.

Dissatisfied with the said ruling/decision, the appellants, having obtained the leave of this court on 13th May, 1997, filed the instant appeal on 29th May, 1997.

The facts of the case of the plaintiffs/respondents, are that the 2nd plaintiff/respondent who was the Managing Director of the 1st plaintiff/respondent, on 2nd July, 1990 approached the then Military Governor of the former Gongola State- Group Captain Abubakar Salihu, to award a contract to him in order to assist him – the 2nd respondent, execute the same with a view to raising money/funds to assist or enable him solve some personal pressing financial commitment/problem/indebtedness for which he had been dragged to court by his creditors- First Bank of Nigeria PLC.

The 2nd respondent brought a proposal over the construction or rebuilding of the Jimeta Shopping Complex, Yola which contract had in fact, been awarded to another company- Govas (Nigeria) Ltd. Incidentally, as the 2nd respondent had confessed to the said Military Governor that he did not have the resources/funds to execute the said project, (the shopping complex), the Military Governor advised him- the 2nd respondent, to look for and find a suitable construction firm/company that could execute the said project satisfactorily.

The 2nd respondent had agreed with the said Military Governor that the 2nd respondent would be entitled to a commission or percentages of every payment to be made to the contractor that would execute the said project. Pursuant to this said understanding agreement, the 2nd respondent went and brought the 2nd appellant who is the Managing Director of the 1st appellant.

As a result of the contract established between the 2nd respondent and the said Military Governor, the contract for the construction of the said Jimeta Shopping Complex, Yola awarded to Govas (Nigeria) Ltd. was revoked and re-awarded to the 1st defendant/appellant.

The respondents later entered into a written agreement with the appellants in which one of the terms, was that out of every payment made to the appellants in respect of the said project, the respondents, will be entitled to amounts and percentages, as appear in Exh. 2.

It is the case of the respondents that the 1st appellant commenced and indeed, completed the said construction of the said project and had so far paid to the respondents, a total sum of N71,551,901.57 (Seventy-one million five hundred and fifty one thousand, nine hundred and one Naira, fifty seven kobo), but have refused to pay to the respondents, their full entitlements as contained in Exh. 2.

It is the contention of the 2nd respondent that when the 2nd appellant was away for about two months and the work on the project was getting stalled or down, he gave a loan of the sum of N290,000.00 (two hundred and ninety thousand naira) to the Site/Project Manager of the said project to enable him continue with the work. That out of this amount/loan, the appellants repaid only the sum of one hundred and fifty thousand Naira (N150, 000.00)to him leaving a balance of one hundred and forty thousand Naira (N140, 000.00)yet to be repaid. The 2nd respondent also claims this balance. Aggrieved by the default or refusal of the appellants to pay the respondents what is/are due to them, the respondents sued.

As noted hereinabove in this judgment, it was at the close of the P.W.2’s evidence that the appellants filed the motion afore-stated.

The parties later filed and exchanged their respective briefs of argument. The appellants also filed a reply brief on 12th March, 1998.

There are five (5) grounds of appeal filed by the appellants.

Without their particulars, they read as follows:

1. The learned trial Judge erred in law in holding that failing to plead illegality in their statement of defence by the defendants was fatal to their application.
2. The learned trial Judge erred/misdirected himself in his construction/interpretation of Order 24 rule 2 of the Gongola State High Court (Civil Procedure) Rules Edict (1987) in holding as follows:

“Sub-section 2 of Order 24 uses the word ‘shall’ throughout. It seems to me that requirement is mandatory and therefore non-compliance shall render this application fatal…”

3. The learned trial Judge erred in law in holding that the issue in the case is the agreement between the parties covered by Exh. N.C. 2.
4. The learned trial Judge erred or misdirected himself in considering Exhs. N.C. 2 in isolation from its background, origin and circumstances in determining the application.
5. The learned trial Judge erred or misdirected himself in ignoring the facts in the plaintiff’s statement of claim and the evidence so far led before him on which the application for the dismissal of the suit was premised.”

The appellants have formulated four (4) issues for determination, viz:

2.0.1. Whether the application of the defendants/appellants vide motion on notice contending that the substance of the plaintiffs’/respondents’ case is illegal or an illegality is fatal because illegality was not pleaded in the defendants’/appellants’ statement of defence.

2.0.2. Whether the lower court should have considered all the averments in the plaintiffs’ statement of claim and the evidence so far led before him (sic) in determining whether the plaintiffs’ case is an illegality as opposed to only picking and considering Exhibit NC. 2 as the trial court did.

2.0.3. Whether (if the answer to number 2 above is in the affirmative) the case of the plaintiffs vis-a-vis their pleading and evidence so far led in court amounts to an illegality.

2.0.4. Whether (if the answer to number 2 above is in the negative) Exhibit N.C. 2 in the whole circumstances of this case can be said to spring from, be founded on or rooted in illegality as to make it and therefore the plaintiffs/respondents’ case illegal (sic).

The respondents, on their part, had formulated two (2) issues for determination, in the first or earlier brief, viz:

(i) Whether the agreement between the parties (Exh. N.C.2) is ex facie illegal or contrary to public policy; and

(ii) Whether the trial Judge was precluded by any rule of law from dismissing the appellants’ motion on notice and reserving the reasons for the said dismissal to a later date.

The court observes that the respondents’ earlier brief filed on 8th July, 1996, had been struck out by the court. An extension of time to file the respondents’ Joint Brief of Argument was granted on 15th October, 1997, on their application. The respondents’ brief filed on 13th October, 1997 was deemed (on their aplication) as properly filed and served by the court on the same 15th October, 1997.

In this said brief, the respondents formulated only one (1) issue for determination, viz:

Whether the agreement between the parties (Exh. N.C.2) is ex facie illegal or contrary to public policy and if so whether objection was properly taken to it by way of motion on notice by the defendants/appellants.

On 6th November, 2002, when this appeal came up for hearing, the learned counsel for the respondents, was absent and there was no reason for his absence. As there was proof of service on him, Okeke, N. Esq.- learned counsel for the appellants, adopted their said brief of argument. By way of oral submission, he referred to the said respondents’ brief filed on 13th October, 1997 which he stated necessitated their filing a reply brief on 12th March, 1998. He abandoned their earlier briefs filed on 22nd May and 14th November, 1996, respectively.

In respect of their issue No.2, he cited and relied on the case of Alao v. African Continental Bank Ltd. (1998) 3 NWLR (Pt. 542) 399, (1998) 2 SCNJ 17 at 34 and submitted that even if it is not pleaded, it could be raised suo motu by the court. In respect of issue No.2, learned counsel relied also on Alao v. A.C.B. Ltd. (supra) to establish that the action of the respondents, is tainted with illegality. He finally urged the court to allow the appeal.

Since learned counsel for the respondents did not appear and there was no reason for his absence, his brief of argument, was treated by the court as having been argued. See Order 6 rule 9 (5) of the Court of Appeal Rules, 2002 and the case of Olarinde v. Olarinde (1993) 7 NWLR (Pt. 307) 629.

Judgment was therefore, reserved till today.

I think that the crucial issue that calls for consideration, in my respectful view, is whether the agreement – Exh. N.C.2 ex facie, is founded or rooted in illegality contrary to public policy and if you like, morality.

Although a court can formulate or re-formulate an issue arising from a ground or grounds of appeal if the interest of justice demands it, I will take all the issues of the appellants and the lone issue of the respondents together.

The purpose of framing or re-framing an issue or issues, it is stated, is to lead to more judicious and proper determination of an appeal. The purpose of formulating it or them, is in order to narrow the issue or issues in controversy in the interest of accuracy, clarity and brevity. See Musa Sea (Jnr.) & Anor. v. DA RAP Kwan & 4 Ors. (2000) 5 SCNJ 1 at 127 – per Uwaifo, J.S.C.

Issues 2.01,2.03 and 2.04 of the appellants and the lone issue of the respondents.

Learned counsel for the appellants has submitted forcefully that if the background or root or foundation of Exh. N.C.2 is illegal or contrary to public policy, the said exhibit is tainted with illegality and therefore, illegal. That the genesis of Exh. N.C.2, is outrightly illegal and so, being an offspring of an illegal transaction, it is also illegal or tainted with illegality. He cited and relied on the case of Okoya & 2 Ors. v. Santilli & 2 Ors. (1994) 4 NWLR (Pt.338) 256, (1994) 4 SCNJ (Pt.2) 333 at 364 line 39 per Belgore, J.S.C. which he partly reproduced thus:

“Once a transaction is illegal, it is void and all things emanating from that transaction is a nullity.”

Learned counsel in arguing their issue 2.03. also referred to the above case/authority, which he reproduced thus:

“Trial Judge held that illegality ought to have been pleaded. With respect, this is not right. Pleadings, I must restate, shall contain and contain only statement of facts upon which a party relies for his case, and not the law nor the evidence by which those pleaded facts are to be proved”.

He had also submitted under issue 2.03 which he adopted in issue 2.04, that issue of illegality of a transaction before the court, can even be taken up suo motu by the court where it is not raised by any of the parties. That afortori (sic) (meaning a fortiori), where a party, in any way, raises it. That this procedure, was adopted by the court in the case of Montefiore v. Menday Motors Company Ltd. (1918) 2 K.B. 241. That the head note to the case reads as follows:

“Where it appears from the evidence during the hearing of a case that the contract sued on is contrary to public policy it is the duty of the Judge to take the objection that the contract is illegal and void.” (the italicising his for emphasis).

It in his further submission under the said issue 2.03 that the above statement, represents the position of the law also stated in the case of Ekwunife v. Wayne (West Africa) Ltd. (1989) 5 NWLR (Pt.122) 422 (Also reported in (1989) 5 NWLR (Pt. 122) 422) which he reproduced as follows:

“…when a contract is ex facie illegal, whether such an illegality has been pleaded or not; the court will not close its eyes against it. For it takes the view that it is the duty of every court to refuse to lend its stamp of authority on any illegal transaction.” (the italicising his)

The appellants submit that at the lower court, their contention was that the subject of the respondents’ case (sic), is ex facie illegal and that the illegality, is manifest on the statement of claim and the further evidence of the PW. 2 at page 14 of the records. That no other facts are needed to be pleaded by the appellants. (italics that of Mr.Okeke).

Learned counsel had referred to Okoya & Ors. v.Santilli (supra) at page 364 lines 35 – 39 which he says is pertinent and which he reproduced thus:

“Where a trial court of law, in the course of trial of a matter finds an illegality punishable under the law, even if not triable in that court but in another tribunal, without prejudice to its referring the matter to that tribunal, must take cognisance of the illegality.” (the italicising his).

He also referred to Cheshire and Fifoot Law of Contract, 9th Edition at page 363, and submitted under issue 2.03, that where the contention of illegality is based on facts in the plaintiffs’ statement of claim according to him, as in the instant case, it could be raised by the defendant even before filing a statement of defence.

The appellants in their reply brief, are saying that reliance on Exh. N.C. 2 both by the learned trial Judge and the respondents in this instant appeal, is of no moment as according to their learned counsel, is faulty and grossly misconceived. He referred again, to the statement in Cheshire and Fifoot Law of Contract at page 356 which he reproduced thus.

“A subsequent or collateral contract which is found or springs from an illegal transaction is illegal and void.” (the italicising his).

Mr. Okeke then submitted that the court looks at the entire substratum of a case which is brought to the fore to determine whether a transaction is illegal or otherwise. He therefore, urged the court to disregard or discountenance the entire argument in the respondents’ brief. In fact, he says that the statement of facts stated in the respondents’ brief, is a distortion of the real facts of the case as, according to learned counsel, it omitted salient points of the case.

I take it from this submission, that the appellants are no longer relying on Exh. N.C. 2 being ex-facie illegal and/or contrary to public policy and therefore, void and/or unenforceable. It seems to me that they are relying on the respondents’ statement of claim and the evidence of the P.W 2 and insist that the facts so disclosed therein and by the evidence of the P.W. 2, are tainted with illegality and therefore void and/or unenforceable.

But under ground(d) of the reasons for bringing the application for dismissal, it is stated that Exh. N.C. 2 (described as ‘purported agreement’) is founded on or springs from an illegal transaction and/or transaction contrary to public policy/morals and therefore, void and/or unenforceable.

The court will pause here, and refer to the submissions of learned counsel for the respondents in their brief. He submitted that it is necessary to determine as a threshold issue, when a contract can be said to be illegal. That a contract may be illegal either at common law or under a statute. He cited and relied on the cases of Rivway Lines Ltd. v. Rhein Mas Und See (1993) 7 NWLR (Pt. 308) 692,712 paras. C-H and George & Ors. v. Dominion Flour Mills Ltd. (1963) 1All NLR 71, (1963) NNSC 54 (sic)(it is NSCC), (1963) 1 SCNLR 117.

He also referred to Chitty on Contracts: General Principles 23rd Edt. Page 805 pars. 804.

It is his further submission that where a contract is not ex facie illegal, the defendant will, as a legal requirement, have to plead the defence before he can raise the same at the trial. He again referred to the cases (supra) and cited and relied on the cases of Sodipo v. Lemminkainen OY (1986) 1 NWLR (Pt. 15) 220 and A.C.B. Ltd. v. Alao (1994) 7 NWLR (pt. 358) 614.

In other words, that where a contract is not ex facie illegal and the question of illegality depends on the surrounding circumstances, then as a general rule, the court will not entertain the question of the illegality, unless, it is raised in the pleadings and that if evidence is led in support of unpleaded illegality, it goes to no issue. He cited and relied on the case of Francis Okagbue & 2 Ors. v. Janet Romaine (1982) NSCC 130, 137 & 138, (1982) 5 SC 133.

In their paragraph 5.06 (vi), it is submitted that it is common knowledge of which the courts have taken judicial notice, that all building contracts are engaged in for the profits that will accrue to the contractor. He cited and relied on the case of Ukoha & Ors. v. Okoronkwo & Ors. (1972) NSCC 387 at 371 SC which he reproduced thus:

“It is obvious that builders work for a profit and apart from his entitlement to the price, the damage to a builder caused by any breach of contract by the employer will be assessed in the light of his profits.” (italicising his)

Learned counsel then submitted that it is neither illegal nor contrary to public policy for a competent construction company, to agree to pay a middleman moneys out of the profits it would generate from a project for his role in assisting to secure and process a contract.

He cited and relied on the case of Alhaji Ibrahim v. Mr. Osim (1987) 4 NWLR (Pt.67) 965 at 970 CA which he says that the facts are not in all fours with the instant appeal, but are germane to it and underlining the principle which is the same; and which he reproduced thus:

“In the business world, appearances and make-believe matter a lot and no businessman would think the less of a man who has an import licence getting money from another who does not have an import licence. In fact, it was a strange paradox of business life in Nigeria then that those who have import licences are those who have no money and those who have money have no import licences.

The parties get together and the man with the money finances the man with the licence upon terms as in this case. In so far as the Import Licence is in the name of the owner no illegality is committed by a man financing an Import Licence belonging to another man. Such is the stuff of which business is made of”. (the italicising mine)

I wish to state at this point, that it seems to me that learned counsel for the respondents, was going into the merits of the suit itself. The apex Court of the land has cautioned and this is firmly settled, that a court, while dealing with preliminary or interlocutory matters, is not entitled to make any comment, pronouncement or observation in its ruling on that application, which might appear to pre-judge or pre-empt the main issue in the proceedings relative to the interlocutory application or which would prejudice the fair hearing of the substantive suit. See Mortune v.Alhaji Gambo (1979) 3 – 4 SC 54 at 56; Omonuwa v. Att.-Gen., Bendel State (1983) 4 NCCR 237 at 243.

In other words, it is not proper for a court including an appellate court, to comment on crucial issue or issues in the substantive case when dealing with preliminary issue or issues or objection. See Elufioye & 9 Ors. v. Halilu & 17 Ors. (1993) 6 NWLR (Pt. 301) 590; (1993)7 SCNJ (Pt.11) 347 at 368 – per Omo, JSC; Oduba v. C. Scheep A. Hautmangracht & Anor. (1997) 6 NWLR (Pt.508) 185, (1997) 5 SCNJ 216 and recently, Att.-Gen., Anambra State & 5 Ors. v. Okeke & 4 Ors. (2002) 5 SCNJ 318 at 344 citing Olaniyi v. Aroyehun (1991) 5 NWLR (Pt. 194) 652; (1991) 7 SCNJ 40. Per Iguh, J.S.C.

Now, it has been settled in a string of decided authorities that the trial of a preliminary issue of law, is to be deprecated unless it would be conclusive of the whole action which ever way it is decided. The procedure is said to be more than usually unsuitable, when the facts on which the decision must be based, are disputed. See Windsor Refrigerator Co. Ltd. v. Branch Nominees Ltd. (1961) 1 CH. 375; Akinola & Ors. v. Oluwo & Ors. (1962) 1 SCNLR 352, (1962) 1 ANLR (Pt. 2) 224.

In other words, a point of law, can be raised on a preliminary objection, if the point of law will be decisive of the whole litigation. See Everett v. Ribbands (1952) 2 Q.B. 198 at 206; Nwosu v. Imo State Environmental Sanitation Authority & 4 Ors. (1990) 2 NWLR (Pt. 135) 688; (1990) 4 SCNJ 97; and recently, M.V ‘Saraz’ & Anor. v. Messrs NV Scheep & Anor. (2000) 5 NWLR (Pt.691) 622, (2000) 12 SCNJ 24 at 55 – per Karibi-Whyte, J.S.C citing other cases.

I am aware and this is settled that a preliminary objection on point of law challenging the validity of the institution of a suit, can or could only be determined at the initial stage, by reference to the pleadings, particularly, the statement of claim. But once the issue cannot be determined on the pleadings, the court ought to proceed to full trail of the case and decide the point after evidence. See Akinbi v. The Military Governor, Ondo State & Anor. (1990) 3 NWLR (Pt. 140) 525 at 53 C.A.

It is firmly established that a defendant who conceives that ex facie, he has a good ground of law which if raised, will determine the action either in limine or after evidence has been adduced by the plaintiff, is entitled to raise such ground of law. See Martins v. Federal Administrator-General (1962) 1SCNLR 209, (1962) 1ANLR 120.

He may also in his statement of defence, rely on the ground of law he considers a complete answer to the claim of the plaintiff. This ground of law will then be argued as a preliminary point. If it is successful, there, the action of the plaintiff ends. See Gold Coast & Ashanti Electric Power Development Authority v. Att. Gen. (1937) 4 WACA 215 and Aina v.The Trustees of Nigeria Railway Pensions Fund (1970) 1 ANLR 281 (both referred to in the case of Hon. Justice Kalu Anya & 3 Ors. v. Dr. Festus Iyayi (1993) 7 NWLR (Pt. 305) 290; (1993) 9 SCNJ (Pt. 1) 53 – per Karibi-Whyte, J.S.C.

It need be borne in mind, that where a preliminary objection is raised, the court is duty bound to express in writing, whether it agreed with the objection or it did not. See Onyekwuluje v. Animashaun & Anor. (1996) 3 NWLR (Pt.439) 637, (1996) 3 SCNJ 24 & 31 and Chief Bright Onyemeh & Ors. v. Lambert Egbuchulam (1996) 5 NWLR (Pt.448) 235, (1996) 4 SCNJ 237 – per Wali, J.S.C.

In the instant case, the appellants joined issues with the respondents. Indeed, in paras. 3 of the 1st and 2nd defendants’ (who filed separate pleadings) they denied the averments by the plaintiffs/respondents in paras. 1,3,4,5,6,7 to 26 of their statement of claim and in fact, put the plaintiffs to the strictest proof of each and every facts in the said paragraphs.

In other words, all the evidence given by the P.W. 2 in support of the averments in the said paragraphs of their statement of claim, had been unequivocally and completely denied by the appellants in their said statement of defence. They wanted the strictest proof of the said averments. When the P.W2 testified substantially in support of the averments in their statement of claim, and tendered documents in support without objection, and was cross-examined by the learned counsel to the appellants (including that he was not entitled to the share in the payments of the Jimeta Shopping Complex), instead of allowing the plaintiffs/respondents to call their other witnesses they had indicated they were going to call, the appellants filed the motion, the ruling on which is the subject-matter of this instant appeal.

In fact, the facts they emphatically denied/traversed in their said statement of defence, they now turn round to insist that the said facts and evidence thereon, disclose illegality! Wonders, it is said, will never end. That was being, with respect, smart. Honestly, the whole thing/exercise looks ridiculous if not totally absurd.

But if I must go on with the said issues, I concede that all pronouncements in the decided authorities relied on by the appellants, are settled. But with the greatest respect and humility to learned counsel for the appellants, even in the case of Wayne (W.A) Ltd. v. Ekwunife (supra) at page 109 of the SCNJ Report, it was held that illegality (which of course is a defence), must be raised in the pleadings or must appear ex facie on the pleadings before the court can utilize it in deciding a / the case. It was held that where the contract is not ex facie illegal and the question of illegality depends on a number of facts – probabilities or possibilities or contingencies – to be hammered, out by evidence and forensic logic, the general rule, is that the illegality must be raised in the pleadings.

There is no doubt that illegality can be raised by a court suo motu. Indeed, the court will not lend its aid to the perpetration of any illegality and will therefore, not permit the enforcement of a contract founded on illegality save in certain exceptional circumstances. See Thirwell v. Oyewumi & 2 Ors. (1990) 4 NWLR (Pt. 144) 384 C.A.

Also settled, is that a contract is illegal, if the consideration or the promise, involves doing something illegal or contrary to public policy or if, the intention of the parties in making the contract, is thereby to promote something which is illegal or contrary to public policy; an illegal contract is void and cannot be the foundation of any legal right.

See Chief Onyiuke III v. Okeke (1976) 1 ANLR (Pt.1) 181; (1976) 3 SC 1 at 7 – per Alexandar, CJN referred to in the case of Amizu v. Dr. B. U. Nzeribe (1989) 4 NWLR (Pt. 118) 755 C.A. and of course Alhaji Alao v. A.C.B. Ltd. (supra) at p. 28, 31. It is not in doubt as noted in the case of Chief Okoya & Ors. v. Santilli Ors. (supra) that all transactions emanating from illegality, renders them void. That is to say, all solemn transactions are vitiated by illegality.

Even in the case of Alhaji Alao v. A.C.B. Ltd. (supra), the cases of Harold Sodipo v. Lemminkainen OY (No. 2) also reported in (1985) 2 NWLR (Pt. 8) 547; (1986) 1 SC 197 at 210. Onyiuke III v. Okeke; and Alowonle v. Bello (1972) 1 SC 20 at 25, were referred to.

The position of the law enunciated by Brett, M.R. in Herman v. Jeuchner (1985) 15 Q.B.D. 561 was referred to. Also referred to was Halsbury’s Laws of England, 3rd Edt. Vol. 8 p. 126 pars. 218 where the law on the point is succintly stated as reproduced therein as follows:

“A contract is illegal where the subject-matter of the contract is illegal or where the consideration or any part of it is illegal.”

As reproduced, is the observation of Eso, J.S.C. in Sodipo’s case (supra) at page 232 thus:

“…It is that when a contract is ex facie illegal, whether illegality has been pleaded or not the court would not close its eyes against that illegality and it is the duty of every court to refuse to enforce such even where illegality has not been pleaded…”. (the italicising mine).

Compare the above with the cases of Ekwunife v. Wayne (W.A.) Ltd. (supra) and Ehimare & Anor. v. Okaka Emhonyon (1985) 1 NWLR (Pt. 2) 177.

It seems to me that it is only when the contract ex facie is found to be illegal, that it does not matter whether illegality has been pleaded or not. This is because, it will be a point of law that can be raised by either the parties, or the court suo motu. The court will take judicial notice of it, if it appears on the face of the contract. See Young v. Mayor of Leemington (1882) 3 Q.B. 575 and Mellis v. Shirley Local Board 16 Q.B.D. 446 referred to in the case of Lagos State Dev. & Property Corp. v. Adold/Stamm International (Nig.) Ltd. (1994) 7 NWLR (Pt.358) 545, (1994) 7 SCNJ (Pt. 111) 625 at 644 – 645.

With profound respect, I see no illegality in the transaction/agreement between either the 2nd plaintiff/respondent and the said Military Governor or between the 2nd plaintiff/respondent and the 2nd defendant/respondent. There is nothing illegal on the face of Exh. N.C. 2 or even in the evidence of the PW.2.

If anything, the revocation and re-award of the said project by the said Military Governor in order to assist the 2nd plaintiff/respondent (their relationship is not pleaded in any of the pleadings), may appear unjustified, immoral, unconscionable, or against public policy or morals. But all these, are matters of speculation and conjecture in which the courts are not allowed or entitled to embark on. However, the circumstances leading to the said revocation, are not disclosed either in the pleadings or in the evidence of the P.W.2. As noted hereinabove in this judgment, the appellants denied flatly of any such events or happenings or transactions between the 2nd plaintiff/respondent and the said Military Governor and between the 2nd plaintiff/respondent and the appellants.

What is important, is that it has not been disclosed in the pleadings or evidence so far, whether Govas (Nig.) Ltd. were not performing the execution of the said project satisfactorily or for some other undisclosed reason or reasons before the said revocation. In any case, the said Company, have not been shown by the appellants to have complained about the revocation and re-award of the said construction of the said project.

I need to point out that Order 24 rules 2 and 3 of the Gongola State High Court (Civil Procedure) Rules, 1987, are very clear and unambiguous. I also hold that it is mandatory.

Public policy, it is said, is at the root of the defence of illegality. That sometimes, it is expedient to consider whether to allow the plaintiffs’ claim, will be contrary to public policy or whether to deny the claim on the ground of the defence of illegality, will occasion him such an injustice as to be contrary to another aspect of public policy which is that a citizen should not without just cause, be deprived of his entitlements. See the case of ST John Shipping Corporation v. J. Rank Ltd. (1956) 3 All E.R. 683. 691 reproduced in the case of Onwuchekwa v. NDIC (Liquidator for C.C.B. (Nig. Ltd.) (2002) 2 SCNJ 178 at 191 per Ayoola, J.S.C. Morality or sentiments have no place in our courts. See Ezeugo v. Ohanyere (1978) 6 – 7 SC 171 at 184 and Chief Oniah v. Onyia & Ors. (1989) 1 NWLR (Pt. 99) 514; (1989) 2 Sw. 143 (both per Obaseki, JSC); Omole & Sons Ltd. v. Adeyemo & 19 Ors. (1994) 4 NWLR (PT 336)48, -per MUHKTAR, J.C.A. and recently, Orhue v. N.E.P.A.(1998) 7 NWLR (Pt. 557) 187; (1998) 5 SCNJ 126 at 141.

Therefore, my answer to issue 2.01, is that in the circumstances adumbrated hereinabove and particularly as the alleged illegality does not appear ex facie either in the statement of claim or in the P.W. 2’s evidence, it was fatal because, the alleged illegality was neither pleaded nor particularised, so, the or my answer, is in the affirmative.

Having joined issues with the respondents in their said statement of defence, my answers to issues 2.02, 2.03 and 2.04 are in the negative.

I wish to pause here and stress firstly, that in my humble opinion, the learned trial Judge, was not entitled to adjourn the said ruling in order to give his reasons for dismissing the objection. This is because, the Gongola State High Court (Civil Procedure) Rules, 1987 make no such provision. See Order 40 thereof. It is the preserve of the appellate courts to take a decision brevi manu and later give its reason or reasons for the said decision. What is worse in the said reasons for the earlier dismissal, was that the latter ruling, was given even when the learned trial Judge was aware that there was an appeal filed against his earlier ruling.

Secondly, stopping of a case or striking out a case (not to talk of dismissing it) before completion, has been deprecated.

In the case of The Liquidator of Efufu C.P.M.C. Ltd. v. Adeyefa (1971) UILR 42; (1970) 1 ANLR 13, it was held that civil cases are proved by preponderance or weight of evidence and that it is not the duty of a court, unless in accordance with any rules of court to that effect, to preclude a party claiming reliefs, from discharging that duty or onus, a right to which he ex debito justiciae is entitled. See also Ujeh Egun v. Martins Osian (1978) 6 FCA 235.

The practice of the court, is long established and is well settled that where a defendant conceives that he has a good defence to the action against him, he may by motion raise such defence and seek to dismiss or strike out the action without hearing evidence. In the instant case, the motion was filed or raised, after evidence had been heard and was to continue. See The State v. Dr. Olu Onagoruwa (1992) 2 NWLR (Pt.221) 33; (1992) 2 SCNJ 1.

As a matter of fact, in the case of Rivway Lines Ltd. v. Rhein Mas Und. See Schiffahurt Skentur GMBH Ltd. (supra), Tobi, JCA (as he then was) in his contribution referred to the case of Nigeria Bank for Commerce and Industry v. Marine and General Insurance Co. Ltd. (1992) 2 NWLR (Pt. 221) 71, at 85 where he stated thus:

“Dismissal of a matter in limine is to me the greatest punishment that a plaintiff can receive in the litigation process. But if the plaintiff is shut away midstream from the stream of litigation, he is in trouble. Therefore, before a trial Judge dismisses an action, he must be very sure that he has no other option open to him.”

I, with profound respect, cannot agree more. I also agree with the view or pronouncement of the learned jurist, that before a trial Judge can terminate an action in limine on grounds of illegality of a contract or transaction, the basis for the illegality, must be clear, tangible and unequivocal on the face of the pleadings.

It will be worse and will be a greater punishment, where a plaintiff (as in the instant case on appeal) has commenced his case by fielding at least two witnesses including himself, and the case is terminated in limine by the court at the instance of the defence that filed a comprehensive statement of defence, therein denying or traversing the material averments in the plaintiff’s statement of claim but without pleading any illegality of contract or transaction and giving particulars of the alleged illegality.I hold in this judgment, that the said motion by the appellants was bogus and time wasting. It deserved its being dismissed by the learned trial Judge.

Before concluding this judgment, let me state that in the case of Piersy v. Young 15 Ch.D. 475 at 487, Jessel. M.R. said that an application to have one or more issues tried before the others, will only be granted in “exceptional and extra-ordinary cases” or where “the Judge has serious reasons to believe that the trial of the issue will put an end to the action.”

In the end result, I hold that this appeal lacks substance. It fails and it is accordingly dismissed. The ruling of Oluoti, J. delivered on 7th September, 1995, is hereby affirmed. The respondents are entitled to costs fixed at N5,000.00 (five thousand Naira) payable to them by the appellants.

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Other Citations: (2003)LCN/1329(CA)